Disappearing garden dispute between homeowner and housebuilder

4 September 2011

Beyond the garden wall, you might think that there is little you can do about a neighbour who decides to start digging up their land, and if it causes you no problems, there is no need to. But what happens if that work starts to affect your property?
A recent story reported in a local newspaper told the tale of a couple in Rutherglen, on the outskirts of Glasgow, who are furious that building works on neighbouring land by a developer caused their garden to subside. A major UK house builder is building new homes on neighbouring land and had begun earthworks that resulted in a retaining wall being removed, causing their garden ground to slide into the space. Initially, representatives for the builder were dismissive of the issue, as they claimed to own the removed fence and that the resulting land slip was not their problem. Since then, relations between the homeowners and the developers are said to have improved. But what rights do homeowners such as this have when it comes to supporting walls, and what can be done if removal of one causes damage to property?
In Scotland, there is no such thing as a right of support but there is an obligation not to act in a way that is going to damage or interfere with support to a neighbour’s land. When it comes to land supporting land, there is no liability in damages nor an obligation to restore the status quo in the absence of any action taken by a neighbour to cause support to fail (for example, heavy rain causing a landslip outwith human control), and there is no obligation to provide support. But any action or work an owner carries out on his own land must be performed so as not to endanger existing support. And if the work is going to put the neighbours land at risk, that neighbour is entitled to prevent it. In the case law, there has also been shown to be a right not to suffer damage to property by the actions of a neighbour.
The ‘subsidence’ does not actually have to be immediately apparent, but due to the fact that the effect in this instance was so immediate and obvious it is difficult to see how the builder could try to shirk responsibility. The company are no doubt equipped with an in-house legal counsel who will confirm their responsibilities to their neighbours; in the event they do not, the couple with the sinking garden would do well to apply to the court to stop any further work continuing, and seek compensation for the damage done to the garden they have spent a decade developing.

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